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For the Constitutional Court: Dissenting Opinions as ‘An Appeal to the Intelligence of a Future Day’ and Beyond

Decision No. 3/2003

In its decision from last Friday (Decision No. 13/2024), the Constitutional Court (CC) referred 14 times to the infamous Interpretative Decision No. 3/2003 (C.C. No. 22/2002). Many experts have reminded us of the context in which this decision was made, namely, that it reproduces the request of the then-Prosecutor General, Nikola Filchev, who argued that the interpretation of the “form of government” should be expansive. However, it is important to highlight another aspect: the dissenting opinion of Justice Rumen Yankov in the same case:

“Regardless, the request is generally inadmissible. (…) Ultimately, the inquiry seeks to imply—if a constitutionally established state body is ‘removed or transferred from one institution to another,’ what will result from it? But the condition of ‘transfer’ or ‘closure’ of the bodies at the time of the inquiry has not been fulfilled! And therein lies the problem.

If the court interprets this now, the consequence will be obvious: to suggest how and in what composition the National Assembly should act, if it decides to implement constitutional changes. But such an interpretation radically replaces the values— this way issues are tackled not by voting in the dark room and by those directly legitimized to legislate, but by a constitutional jurisdiction that determines the rules of behavior a priori. It turns out that the Constitutional Court, in the role of an oracle, distributes political indulgences and preserves the status quo.”

Another dissenting opinion in the same case was written by Justice Penka Tomcheva, who argued that changes in constitutionally defined bodies and institutions cannot automatically lead to a change in the form of state structure and governance without changes in Articles 1 and 2 of the Constitution.

The composition of the CC that issued Decision No. 3/2003 sided with the Prosecutor General and did not terminate the case, despite grounds to do so, because no constitutional changes had been made that needed interpretation. As a result, due to the detailed reasoning of Decision No. 3/2003, in practice, 10 judges influence and dictate (then, and seemingly in the future) how directly elected parliamentary representatives should implement policies and how these should be codified in norms. This perspective, however, undermines democratic values. Not only because the Constitutional Court pre-determines the rules of behavior for those in political power and the procedural order that the National Assembly must follow, but also because constitutional judges do not bear and cannot bear political responsibility for it. Unfortunately, with last week’s decision, the majority of the current CC composition signals that every National Assembly must follow these “derived dimensions” when making constitutional changes.

On Dissenting Opinions

The question of what significance dissenting opinions hold is entirely valid, given that the dominant majority has already ruled on the issue and the outcome is clear. If we look beyond the local context, we can see that sometimes dissenting opinions can serve as a prophetic glimpse of how a public issue might develop in the future. As U.S. Supreme Court Justice Ruth Bader Ginsburg says in her article “The Role of Dissenting Opinions:

“Describing the external impact of dissenting opinions, Chief Justice Hughes famously said: “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”

Dissents of this order, Justice Scalia rightly commented, “augment rather than diminish the prestige of the Court.” He explained: “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting . . . to look back and realize that at least some of the [J]ustices saw the danger clearly and gave voice, often eloquent voice, to their concern.”

According to Ginsburg, the benefits of dissenting opinions include:

  • Intra-institutional – they can provoke the author of the majority decision to refine and improve the initial draft.
  • Public – those that aim to attract immediate public attention can trigger legislative change.

“Brandeis (…) realized that . . . random dissents . . . weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents . . . need to be saved for major matters if the Court is not to appear indecisive and quarrelsome . . . . To have discarded some of [his separate] opinions is a supreme example of [Brandeis’s] sacrifice to [the] strength and consistency of the Court. And he ha[d] his reward: his shots [were] all the harder because he chose his ground”

The Constitutional Court is Not a Sacred Cow

Another role that dissenting opinions can play is exposing the abuse of power. When the majority exceeds its powers, individual members of the court panel can act as the voice of reason, demonstrating that the constitutional or supreme court of any country is not a sacred cow. Judges, who are entrusted with the responsibility of adjudication, can concentrate too much power. This power, not subject to mutual control, can lead to:

  • The undesirable situation of the constitutional/supreme court becoming a quasi-legislator, as is the case in Bulgaria regarding Decision No. 3/2003.

In this context, the quote from the late Justice Rumen Yankov can be expanded upon: excessive power concentrated in judges may “pose a risk of tyranny (judges are irremovable, with differing political leanings, elected in an occult manner to the wider public and not politically accountable)” – dissenting opinion by Justice Yankov in Decision No. 8 of 2005. The opinion of Judge Belazelkov on Friday’s decision is also noteworthy:

“Deviations from this model, created on abstract grounds [with the 1991 Constitution], are necessary and inevitable, no matter how perfect it may have seemed, since only its application in public practice can show its suitability to guarantee human rights… (…). Comparing every change with this setup and measuring the degree of deviation is unproductive, as everything new constitutes some (large, small, significant, or insignificant) ‘change in the form of state structure’ or in the ‘form of government,’ because the substantial content of the Constitution is the regulation of such a state structure and government that best promotes the free development of the individual.”

  • Violating the existing rules to the extent that it causes serious upheaval in democratic governance by upsetting the balance of powers

A similar development has occurred in the U.S., where the majority of the Supreme Court, in the case 23-939 Trump v. U.S., practically created a dangerous precedent by placing the president above criminal law. In this context, the dissenting opinions of Justices Sotomayor and Jackson stand out even more:

“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law. ”

“The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. (…) Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. ” (Justice Sotomayor)

“In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.” (Justice Jackson)

Instead of a Conclusion

The voice of dissenting opinions from minority justices in the U.S. Supreme Court has been heard. The Biden administration proposed reforms of the Supreme Court and the Constitution to ensure presidential power is limited, not absolute, and that Supreme Court justices have limited terms and follow an ethical code. There is also a desire for reform of the Federal Constitutional Court in Germany – a consensus has been reached by all parties except the AfD, aiming to create more safeguards against the political capture of the court, especially by far-right politicians.

How these reforms will unfold is uncertain. What is clear, however, is that there are countries where democratic reflexes exist. If a particular power or group accumulates too much power, a reaction will follow. In our country, whether such reflexes have not developed or have atrophied is speculative, but their absence is evident. The blindness of our Constitutional Court to the influence of the Chief Prosecutor is perplexing, and the convoluted arguments presented seem more like an excuse.

[1] i.e., not determined solely by the nature of the state as a parliamentary or presidential republic or monarchy, but also by the existence, position, and functions of the respective high state institutions (parliament, president, government, CC, Supreme courts, prosecutor’s office, investigation, judicial council). This includes the activities and powers entrusted by the Constitution to these institutions, and “to what extent their changes disrupt the balance between them while respecting the fundamental principles on which the state is based – popular sovereignty, supremacy of the constitution, political pluralism, separation of powers, rule of law, and judicial independence.

”The image is the lithograph “Mr. l’avocat a rendu pleine justice…” by Honoré Daumier.


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